Zoned Out – A Brief History

The institutional reform movements of the 1970’s led to a significant downsizing of large facilities housing people with developmental and other disabilities.  Advocates began a concerted effort to establish community-based homes, but faced numerous obstacles, most often from local communities which used zoning and building laws as a barrier to allowing development of smaller group homes.

Getting a group home established in the 70’s and early 80’s required persuading a zoning board that the proposed home was not an institution and should be allowed in a single-family area because the group functioned as a family.   One of the first in this area was established in Lakewood after a memorable hearing where some neighbors were vocal in their fear that the residents (with developmental disabilities) were likely to molest the neighborhood children.  Zoning was finally approved despite these fears.

Another approach was used in Shaker Heights which adopted a group home ordinance after literally years of study and neighborhood meetings.  Most cities, however, continued to use zoning restrictions to keep the homes out of single-family neighborhoods.

Two developments changed the picture.  In 1985, the US Supreme Court in City of Cleburne v. Cleburne Living Center., Inc. held that there was no rational basis for communities to exclude family-style group homes in residential areas.

Then came the 1988 amendments to the Fair Housing Act (FHA), which extended the protections of the FHA to people with disabilities.  More specifically, the FHA prohibited cities from excluding group homes in areas zoned for families.  Numerous

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Illegal Delay of 2016 Equity in IDEA Regulations

On March 7, 2019, the US District Court in Washington D.C. ruled that the current Department of Education had acted arbitrarily and capriciously in failing to implement Obama-era rules which are intended to address the disparities in the treatment of students of color with disabilities. A summary of the action was issued by the Council of Parent Advocates and Attorneys (COPAA):

  • The U.S. District Court for the District of Columbia found that the U.S. Department of Education (the Department) had engaged in an ‘illegal delay’ of the 2016 Equity in IDEA regulations. Those regulations, which were supposed to go into effect on July 1, 2018, implement the Individuals with Disabilities Education Act (IDEA) requirements relating to significant racial disproportionality. The federal court’s ruling requires those 2016 final regulations to immediately go into effect.
  • The decision comes as a result of a lawsuit filed against the Department by COPAA, who were represented by the National Center for Youth Law.
  • The suit, filed on July 12, 2018, alleged that the Department’s delay violated the Administrative Procedure Act (APA).
  • “Today is a victory for children, especially children of color and others who are at-risk for being inappropriately identified for special education,” said COPAA’s executive director, Denise Marshall.
  • “COPAA, with the support of parents whose children who have been harmed by unlawful suspensions, assignments to segregated and restrictive classrooms, and improper decisions of both under and over identification for special education, took legal steps to fight the Department. The court has sided
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Ground-Breaking Settlement for Ohio Special Education Students!

Ground-Breaking Settlement for Ohio Special Education Students!

On November 8, 2018, the news broke that disability advocates reached a settlement in the long-running Doe case against the State of Ohio.  While the settlement is still subject to court approval, it requires special efforts by the state for students with disabilities to improve test scores and rates of inclusion in 11 school districts.  It aims to improve academic outcomes and reduce segregation.

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What’s Happening to Services in the DD System?

The past three years have seen developments which are leading to sweeping, radical changes to the system of services for persons with developmental disabilities (DD). Many families have become confused and anxious about these changes. While we cannot remove anxiety about how the system will evolve over the next few years, we can offer some clarity about why the changes are happening.

CHANGES IN FEDERAL RULES

In early 2014, the Center for Medicare and Medicaid SErvices (CMS)  issued rules which required implementation of three important principles:

  • All services supported by Medicaid waivers, including residential, vocational and leisure, must be provided in an integrated setting, with certain exceptions. Medicaid programs in all 50 states were given five years to develop plans to conform to this requirement.
  • Providers of direct services supported by Medicaid waivers are prohibited from also providing case management services. This requirement was put into effect immediately, but Ohio negotiated a phase-in period of nine years.
  • All providers of Medicaid waiver services must implement principles of person-centered planning.

These requirements, particularly the first two, have led the County Boards of Developmental Disabilities (DD Boards) to shift operation and management of sheltered workshops and other direct services to private providers. Many DD Boards have divested direct services over the past years, but all will have to have completed this process over the next few years.

BALL v. KASICH LAWSUIT IN FEDERAL COURT

On March 31, 2016, Disability Rights Ohio (DRO) announced it filed a lawsuit in U.S. federal court against

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Ninth Circuit Court of Appeals seal

Special Education Law Update

On March 3, 2016, the Ninth Circuit Court of Appeals released its opinion in A.G. v. Paradise Valley USD, No. 13-16239, a special education case. The Opinion has important implications for parents who are challenging a school district after the parents have agreed to the IEP or failed to make a specific request for services.

The Ninth Circuit confirmed that school districts, not parents, have the affirmative non-delegable obligation to gather data and evaluate the needs of disabled students. The Ninth Circuit said that a parent’s consent to an IEP does not waive a claim of lack of meaningful access to a public benefit. The school district has specialized expertise which parents do not have; a district cannot absolve itself of the school’s duties to the child by getting the parents’ consent.

A.G.’s parents did not request some of the services that they later argue the district should have provided. Again, this came down to specialized expertise and parents cannot be expected to have the expertise – or legal duty – to determine what accommodations might allow the child to remain in her regular educational environment. This duty rests with the school district.

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New Guardianship Rules: What About Those Plans?

The Supreme Court adopted extensive amendments to the Guardianship Rules, which were effective June 1, 2015. Among these amendments is the requirement for all guardians to file an “Annual Plan” with the Probate Court. This new requirement has raised a number of questions:

  • What should be in these Annual Plans?
  • How is the Annual Plan different from the Guardian’s Report?
  • How is the Annual Plan different from service plans, such as Individual Service Plans developed by local boards of developmental disabilities?
  • What should be included in an Annual Plan?

What are the Rules?

Rule 66.08(G) states:

A guardian of a person shall file annually with the Probate Division of the Court of Common Pleas a Guardianship Plan as an addendum to the Guardian’s Report. A guardian of an estate may be required to file an annual guardianship plan with the Probate Division of the Court of Common Pleas. The Guardianship Plan shall state the guardian’s goals for meeting the ward’s personal and financial needs.

Several points are worth noting:

  • All guardians of person are required to file an annual plan;
  • Individual courts have discretion to require annual plans from guardians of estate;
  • The rule specifies that the guardian’s plans be filed annually and attached as an addendum to the guardian’s report (a different form – see below);
  • Filing a guardian’s report does not meet the requirement for a guardian’s plan.

How Does the Guardian’s Plan Differ from the Guardian’s Report?

The Guardian’s Plan

The Guardian’s Plan is only required by

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Notice to People on Waivers

Ohio rules allow the Department of Developmental Disabilities (DODD) to remove waiver benefits if the person “fails or refuses to use services” in accordance with the person’s plan. The Department of Developmental Disabilities has identified 900 persons who are on waivers, but who have not used waiver services for a year.

DODD WILL INITIATE DISENROLLMENT FOR PEOPLE ON WAIVERS WHO ARE ON THIS LIST AND WHO DO NOT MAKE USE OF THEIR WAIVER SERVICES BY JUNE 2016!

IT is critical that all individuals and families understand the serious consequences that could result from their disenrollment from waivers. Once the actual disenrollment has begun, DODD actually will provide the Due Process notices to waiver enrollees.

Please do everything in your power to utilize waiver services and preserve your enrollment.

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Guardianship Update

We recently shared some information about new Ohio guardianship rules, which included training requirements. The following is an additional update regarding new guardian duties:

  • Guardians of all types must file a list of all of a ward’s “important legal papers, including, but not limited to estate planning documents, advance directives, and POAs.” They must also list the location of the papers. Some courts are requiring filing of actual papers, not just a list. The list must be filed within three months of appointment. For existing guardians, the presumption is to file the list in a timely fashion, but there is nothing in the rule.
  • Guardians must give notice to the court of all changes in residence at least 10 days in advance, except in emergencies. They must also get court approval for a transfer to more restrictive setting or a setting outside of the county, except when a delay would affect the ward’s health and safety.
  • Guardians cannot provide direct services without court approval. This will impact parents who are waiver providers and guardians.
  • The best interest is still the controlling standard, but the guardian must establish the ward’s preferences and take these into account.
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Guardians: Take Note!

By Attorney Franklin J. Hickman

The Supreme Court issued extensive new rules affecting all guardians in Ohio, effective June 1, 2015. Major highlights are summarized below. The full text of the rule can be found here.  

Pre-Appointment Training (66.06)

Every guardian, both existing and newly appointed, must attend a six-hour course on the fundamentals of guardianship. The content of the training is set by rule. The Supreme Court is preparing a curriculum and resource materials, which will be presented at regional trainings beginning in late June 2015. These sessions will have separate tracks for “lay” guardians and guardians who have had professional training, such as lawyers or social workers.

Each Probate Court will develop and present its own on-going training program on fundamentals.

Guardians appointed on or prior to June 1, 2015, will have one year to complete the training. Guardians appointed after June 1, 2015, will have to complete the training within six months of appointment.

Continuing Education (66.07)

All guardians will have to complete a three-hour continuing education program, which is approved by the Supreme Court. Guardians are required to provide documentation of compliance on or before January 1 annually.

Courts will not make further appointments for guardians who fail to comply with the continuing education. If a guardian fails to comply for three years or more, the guardian will have to take a six-hour fundamentals course. Continued non-compliance could result in the guardian being removed.

Criminal Background Checks (66.05(A)(1))

Courts must ensure that all guardians

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Guardians: Take Note!

The Supreme Court issued extensive new rules affecting all guardians in Ohio, effective June 1, 2015. Major highlights are summarized below. The full text of the rule can be found here.

Pre-Appointment Training (66.06)

Every guardian, both existing and newly appointed, must attend a six-hour course on the fundamentals of guardianship. The content of the training is set by rule. The Supreme Court is preparing a curriculum and resource materials, which will be presented at regional trainings beginning in late June 2015. These sessions will have separate tracks for “lay” guardians and guardians who have had professional training, such as lawyers or social workers.

Each Probate Court will develop and present its own on-going training program on fundamentals.

Guardians appointed on or prior to June 1, 2015, will have one year to complete the training. Guardians appointed after June 1, 2015, will have to complete the training within six months of appointment.

Continuing Education (66.07)

All guardians will have to complete a three-hour continuing education program, which is approved by the Supreme Court. Guardians are required to provide documentation of compliance on or before January 1 annually.

Courts will not make further appointments for guardians who fail to comply with the continuing education. If a guardian fails to comply for three years or more, the guardian will have to take a six-hour fundamentals course. Continued non-compliance could result in the guardian being removed.

Criminal Background Checks (66.05(A)(1))

Courts must ensure that all guardians have had a criminal background check.

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